Citation: R v Amanda Convery aka Crombie [2013] NSWDC 69
Court: NSW District Court
Date: 28 February 2013
Judge: Berman SC DCJ
Background
The offender was a 23-year-old Aboriginal woman with a significant history of schizophrenia, intellectual disability, and drug dependence, who had grown up in circumstances marked by family violence, sexual abuse, and substance use from early childhood. In the early hours of 1 April 2012, she was walking through Redfern while under the influence of drugs and without her antipsychotic medication, carrying a glass tumbler and behaving in a disorderly manner.
Two police officers on traffic duty in the area approached her. Over approximately an hour, the offender directed abusive and racially offensive language at both officers. When one of the officers eventually approached her to address her behaviour, the offender produced a syringe from her dress and stabbed the officer with the needle just one centimetre from her left eye, before punching her repeatedly.
The officer sustained a puncture wound to her left temple, a scratch to her cheek, and significant pain to her nose. She also faced an extended period of psychological distress arising from uncertainty about whether she had contracted a blood-borne disease. It was ultimately established, after some months, that she had not.
Legal Issues
- What sentences were appropriate for the offences of assault of a police officer in the execution of duty (occasioning actual bodily harm) and use of an offensive weapon to commit an indictable offence?
- To what extent did the offender's Aboriginal background, childhood disadvantage, mental illness, and intellectual disability reduce her moral culpability, in accordance with the principles in R v Fernando?
- Whether the sentences for the two offences should run concurrently, accumulatively, or partially accumulatively?
- Whether special circumstances existed justifying a non-parole period less than the statutory proportion of the head sentence?
Decision
Berman SC DCJ found that the offender's moral culpability was substantially reduced by the convergence of several factors: an extremely deprived Aboriginal childhood involving sexual abuse, family violence, and substance use from the age of five; ongoing schizophrenia with associated paranoia and auditory hallucinations; and a significant intellectual disability. His Honour applied the Fernando principles, which recognise that the life choices of Aboriginal offenders raised in severe disadvantage must be assessed with regard to the circumstances in which those choices were formed.
At the same time, his Honour rejected any suggestion that mental illness could operate as a complete shield from punishment. The offender had made her own decisions to cease taking prescribed antipsychotic medication and to use illegal drugs, knowing that the combination would severely impair her mental state. Personal deterrence therefore retained some relevance, even if general deterrence had a reduced role.
His Honour found partial accumulation of the two sentences was appropriate because, while the offences were related, they focused on different aspects of the offending conduct and did not entirely overlap. A finding of special circumstances was made, justifying a non-parole period of less than half the total sentence, on the basis that extended supervision in the community upon parole was plainly in the public interest given the offender's mental health and history.
His Honour also took note of two notable features in the offender's favour: the victim's own victim impact statement, which expressed hope that the outcome would serve both the public interest and the offender's interests, described by his Honour as "a truly remarkable statement"; and the offender's prompt cooperation in consenting to the release of her medical records to assist in assessing the risk of disease transmission to the officer, which was consistent with expressed remorse.
Orders Made
- For the offence of using an offensive weapon with intent to commit an indictable offence: fixed term of imprisonment of 2 years, commencing 1 April 2012.
- For the offence of assaulting a police officer in the execution of duty (occasioning actual bodily harm): non-parole period of 2 years commencing 1 October 2012, with a parole eligibility period of 3 years and 6 months.
- Overall sentence: non-parole period of 2 years and 6 months; total term of 6 years; eligible for release to parole on 30 September 2014.
Key Takeaways
- The District Court applied the Fernando principles substantially, reducing the offender's moral culpability significantly in recognition of a childhood defined by violence, sexual abuse, and substance use within an Aboriginal family context.
- Severe mental illness does not extinguish personal responsibility for sentencing purposes where the offender made deliberate choices to discontinue prescribed medication and consume illegal drugs with knowledge of the likely consequences for their mental state.
- Where two offences arising from the same incident address different aspects of the offender's criminality, partial accumulation of sentences may be appropriate even where total accumulation is not.
- Special circumstances justifying a non-parole period below the standard statutory proportion can arise where extended post-release supervision is plainly in the community's interest, particularly for offenders with serious and ongoing mental health conditions.
- A victim impact statement expressing genuine concern for the offender's welfare, as well as the public interest, can be a relevant consideration in the sentencing exercise.
Legislation and Cases Referenced
Cases:
- R v Fernando (1992) 76 A Crim R 58 (and see also R v Fernando [1999] NSWCCA 66, as cited by his Honour)
Legislation:
- No specific legislation was cited in the judgment text, though the offences carry statutory maximum penalties: assault of a police officer in the execution of duty occasioning actual bodily harm carries a maximum of 7 years imprisonment with a standard non-parole period of 3 years.